Everybody Must Get Stoned: Drug Testing In An Age of Legalized Recreational And Medical Marijuana

By Mark F. Kluger and William H. Healey

While working at the quarry, Fred accidentally drops a rock on Mr. Slate’s foot. In accordance with the company’s post-accident drug and alcohol testing policy, Fred is tested and the results are positive for marijuana. He tells Mr. Slate that over the weekend he got stoned at Barney’s bachelor party which was held, where else…in Boulder Colorado, where recreational marijuana sale and use are legal. Besides, Fred explained, he has a prescription for medical marijuana because the drug helps with, what else…. his kidney stones (last one). So now what can Mr. Slate do?

Twenty six states and the District of Columbia have legalized marijuana use in some form, seven for recreational and medicinal use and the rest just for medical purposes and still other states have simply decriminalized possession of small amounts. As a result, the legal use of marijuana by applicants and employees can create some tricky issues for employers. Specifically, employers that conduct pre-employment, random, reasonable suspicion or post-accident drug testing may well have an applicant or employee who, like Fred, used the drug in a state in which it is legal or for medical reasons, the latter of which may implicate state and federal laws protecting employees with disabilities. However, it is also important to remember that marijuana is still illegal under federal law. A federal contractor would have no choice but to fire Fred; other employers have discretion to establish their own policy to address this issue.

In a recent development on the subject though, this past Thursday, May 18, 2017, OSHA announced a delay of its July 1st scheduled implementation of its controversial electronic recordkeeping and reporting rules that would require employers to provide notice to employees about their right to report injuries and accidents, free from retaliation. The controversy is that in its commentary to those rules, OSHA made clear that the agency considers mandatory post-accident drug testing to be inherently retaliatory. OSHA’s position is that in order to engage in post-accident drug testing, an employer must be able to show a “reasonable basis” to believe that drugs may have played a role in the incident, unless the testing is to comply with federal or state law (such as DOT regulations), or is part of a workers compensation insurance premium reduction program. Clearly, if a ceiling tile falls on an employee’s head, an employer would be hard pressed to justify the need for post-accident drug testing. On the other hand, if an employee drops a boulder on his boss’s foot, there may be no way of knowing if drugs played a role without mandatory testing. The sudden delay in implementation may have something to do with recent political-based changes at the top of the agency.

So here’s the deal for Mr. Slate: Simply because an employee (or applicant) obtains and uses marijuana in a state in which it is legal does not mean that an employer has to accept the applicant or retain the employee who tests positive. After all, there is no prohibition on alcohol use (a little 21st Amendment humor) and employers can certainly refuse to hire and can fire someone who tests positive for it. There is, however, one significant difference: while alcohol metabolizes at a rate of about an ounce an hour, marijuana can be detected through a standard urine test for as long as 12 weeks for a frequent user and up to 30 days for the occasional toker. And someone who tests positive for marijuana may not have any impairment at all depending on how long between ingestion and testing. But an employer still has the right to pass on hiring or retaining a stoner.

As for medical use, at this point, even a doctor’s prescription permitting legal use of the drug cannot tie an employer’s hands. Because marijuana is still an illegal drug under federal law, an employer cannot be required under the Americans with Disabilities Act to accommodate its use or acquiesce to its presence in an applicant or employee who tests positive. This issue has yet to be challenged under any state anti-discrimination laws.

Sorry Fred, but for now it looks like Mr. Slate can send you home to Wilma and Pebbles if he wants.

If you need help navigating through the complex regulatory and common law issues involving pre-employment, random, reasonable suspicion and post-accident drug and alcohol testing, please call us.